The following will be of interest to those in the agri-business
who employ seasonal workers:
In Ontario (General Manager, Ontario Health Insurance Plan) v
Clarke, a decision released March 31, 2014, the Ontario Divisional
Court considered whether two seasonal workers were entitled to
continued coverage under the publicly funded provincial health
insurance plan ("OHIP").
The workers were employed by an Ontario company as part of the
federal government's Seasonal Agricultural Worker Program
("SAWP"). The workers suffered serious injuries after
being involved in a motor vehicle accident as they were being
transported to work in the employer's van.
WSIB paid the workers compensation benefits and funded the cost
of the needed medical care. However, the workers required continued
medical treatment following the expiration of their work permits.
As such, they applied to the Federal government to be granted
visitor status and to the Ontario government for an extension of
the OHIP coverage. The workers were granted visitor status but the
Ontario government denied the request for continued coverage under
OHIP. The Ontario Health Services Appeal and Review Board
overturned the decision, finding that the workers were residents of
Ontario and as such, eligible for health insurance coverage. The
Ontario government appealed the decision of the Ontario Health
Services Appeal and Review Board to the Divisional Court.
Central to the appeal was the interpretation of section 1.3 (2)
of Regulation 522 under the Health Insurance Act, R.S.O. 1990,
c.H-3. This section provides that those working in Ontario pursuant
to a work permit under the SAWP are residents pursuant to the
Health Insurance Act and entitled to OHIP coverage.
The Ontario Health Services Appeal and Review Board had
concluded that the workers continued to be classified as residents
under this section even after the work permit under the SAWP
expired. However, the Divisional Court reversed this decision and
concluded that the exception provided in this section only applied
to those with a valid work permit under the SAWP. The Court stated
that "the plain wording of the regulation allows for no other
conclusion that the [workers] ceased to be eligible for OHIP once
their work permits expired on December 15, 2012". Simply put,
as the work permits had expired, the injured workers did not
continue to fall within the exception and were not entitled to
continued OHIP coverage.
Of potential concern for employers were the Court's
comments regarding the responsibility of companies who employ
The Court noted that a gap exists where a seasonal worker under
the SAWP is required to stay in Ontario following the expiry of
his/her work permit for medical reasons. The Court noted that this
gap should be filled either by requiring employers to obtain
supplemental health insurance or through an agreement negotiated
between the Federal and Provincial governments.
This case could be further appealed and we will monitor
the matter for any updates.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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